United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 14, 2005

Charles R. Fulbruge III Clerk No. 05-10039 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROGELIO PEREZ-TRUJILLO, also known as Roberto Gutierrez, also known as Rogelio Cerda-Trevino, also known as Eduardo Hernandez Lozano,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:03-CR-277-ALL-L --------------------

Before KING, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Appealing the Judgment in a Criminal Case, Rogelio Perez-

Trujillo raises arguments that are foreclosed by United States v.

Mares,

(5th Cir.), cert. denied,

(2005), and its progeny, which held that unpreserved claims based

on United States v. Booker,

(2005), are reviewed

for plain error and by Almendarez-Torres v. United States,

(1998), which held that a prior conviction is a

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 05-10039 -2-

sentencing factor under

(b)(2) and not a separate

criminal offense. The Government’s motion for summary affirmance

is GRANTED, and the judgment of the district court is AFFIRMED.